Opinion
Civil 1:21-CV-421
05-07-2021
PERCY BURRIS, et al., Plaintiffs, v. SHARON CLARK, et al., Defendants.
Brann Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
I. Factual Background and Procedural History
This case is brought by four pro se inmate plaintiffs, Perry Burris, Shawn Strawn, Edward Wright, and Alfonso Percy Pew. The plaintiffs' complaint, which was removed by the defendants to federal court on March 8, 2021, (Doc. 1), appears to set forth a hodgepodge of individual claims against different parties based upon discrete and disparate events with the only clear common tie between the claims being the fact that the plaintiffs were all D-Code Stability Health inmates housed on BA Unit at SCI Rockview. There is a motion to dismiss pending in this case. (Doc. 6). That motion alleges, in part, that the disparate claims of these diverse plaintiffs are not properly joined in a single lawsuit.
This case has been unusual in a number of respects. Most notably, from its inception, one prisoner-plaintiff, Alfonso Percy Pew, has been filing pleadings on behalf of all of these inmate-plaintiffs. Pew's involvement as the de facto pro se lead counsel in this case is particularly problematic since Pew has been banned from filing cases in his own name in the past due to his own extensive history of frivolous and meritless lawsuits.
Recognizing this fact, we placed all plaintiffs on notice that Pew may not file pleadings on behalf of any other plaintiff. As a non-lawyer, Pew is only authorized to represent his own interests in this case and is not empowered to “represent” the interests of other unrepresented parties. This rule is, first, prescribed by statute: “In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.” 28 U.S.C. § 1654 (emphasis added). In keeping with this statutory language, the Third Circuit Court of Appeals has instructed that “a nonlawyer appearing pro se [is] not entitled to play the role of attorney for other pro se parties in federal court.” Osei-Afriyie by Osei-Afriyie v. Med. Coll. of Pennsylvania, 937 F.2d 876, 882 (3d Cir. 1991) (holding father not authorized to represent the legal interests of his children in federal court, and vacating judgment that had been entered against unrepresented children); see also Lutz v. Lavelle, 809 F.Supp. 323, 325 (M.D. Pa. 1991) (“It is a well-established principle that while a layman may represent himself with respect to his individual claims, he is not entitled to act as an attorney for others in a federal court.”); cf. Fed.R.Civ.P. 11(a) (requiring that all pleadings, motions, and submissions to federal courts be signed by an attorney of record, or by the unrepresented party himself or herself). (Doc. 20).
We brought this legal authority to the plaintiffs' collective attention and explained that although Pew is legally entitled to represent his own interests in this litigation, he is not permitted to represent their individual interests. We then instructed all of the pro se plaintiffs that, going forward, all pro se parties were required to sign and file their own pleadings, motions, and submissions made in this case. Pew, as a non-lawyer, was not authorized to provide these individuals with legal representation in federal court. Liptok v. Bank of Am., No. 3:15-CV-156, 2016 WL 6818362, at *3 (M.D. Pa. Oct. 20, 2016), report and recommendation adopted, No. 3:15CV156, 2016 WL 6780757 (M.D. Pa. Nov. 16, 2016), aff'd, 773 Fed.Appx. 97 (3d Cir. 2019).We further ordered each plaintiff to individually respond to this motion to dismiss on or before May 4, 2021. Finally, we put the plaintiffs, who were proceeding pro se, on notice that Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on the plaintiffs to respond to motions, and provides that:
Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with this rule shall be deemed not to oppose such motion. Nothing in this rule shall be construed to limit the authority of the court to grant any motion before expiration of the prescribed period for filing a brief in opposition. A brief in opposition to a motion for summary judgment and LR 56.1 responsive statement, together with any transcripts, affidavits or other relevant documentation, shall be filed within twenty-one (21) days after service of the movant's brief.
Local Rule 7.6 (emphasis added).
We then advised all of the pro se plaintiffs that it is now well settled that “Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency ‘if a party fails to comply with the [R]ule after a specific direction to comply from the court.'” Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, *1 (M.D. Pa. Aug. 26, 2010) (quoting Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (1991)).
While Pew has filed correspondence indicating that he has been delayed in responding to this motion, (Doc. 28), none of the other putative plaintiffs have responded to our instructions and the time for a response has now passed. Moreover, multiple items of mail addressed to inmate-plaintiff Shawn Strawn have been returned as undeliverable. (Docs. 25-27, 29, 30). As a pro se litigant, Strawn's failure to maintain an address where he could be reached itself violated the rules of this court; specifically, Local Rule 83.18, which provides that:
LR 83.18 Appearance of Parties Not Represented by Counsel.
Whenever a party by whom or on whose behalf an initial paper is offered for filing is not represented in the action, such party shall maintain on file with the clerk a current address at which all notices and copies of pleadings, motions or papers in the action may be served upon such party.
Accordingly, in the absence of any timely response by plaintiffs Burris, Strawn, and Wright, and given that we no longer have any means of communicating with inmate-Strawn whose mail is returned undeliverable, we will deem this motion to dismiss ripe for resolution.
For the reasons set forth below, as to plaintiffs Burris, Strawn and Wright, the motion should be granted and these plaintiffs should be dismissed from the instant, conflated complaint without prejudice to the filing of separate individual complaints by these inmate-plaintiffs.
II. Discussion
A. Under The Rules of This Court, Shawn Strawn Should Be Deemed to Have Abandoned This Lawsuit .
At the outset, under the Local Rules of this Court, one plaintiff, Shawn Strawn, should be deemed to have abandoned this lawsuit by failing to provide the court with an address where he can be reached, a direct violation of Local Rule 83.18. Strawn's ongoing violation of Local Rule 83.18 permits the court to find that he has abandoned this litigation. In this circumstance, dismissal of this action for failure to abide by court orders or the rules of this court, and failure to prosecute, is fully justified. See, e.g., Juaquee v. Pike County Corr. Facility Employees, 3:12-CV-1233, 2013 WL 432611 (M.D. Pa. Feb. 1, 2013); Kuhn v. Capitol Pavilion, 1:11- CV-2017, 2012 WL 5197551 (M.D. Pa. Oct. 19, 2012); Educ. Mgmt. Services, Inc. v. Pennsylvania, 1:10-CV-00441, 2012 WL 2389874 (M.D. Pa. June 25, 2012); Olguin v. Burgerhoff, 1:12-CV-0003, 2012 WL 1580935 (M.D. Pa. May 4, 2012); Nowland v. Lucas, 1:10-CV-1863, 2012 WL 10559 (M.D. Pa. Jan. 3, 2012); Binsack v. Lackawanna Cnty. Dist. Attorney's Office, 3:08-CV-1166, 2011 WL 5840314 (M.D. Pa. Nov. 21, 2011); Washington v. Columbia Cnty. Prison, 3:CV-10-45, 2011 WL 98547 (M.D. Pa. Jan. 12, 2011).
In this case, inmate Strawn has failed to comply with Local Rule 83.18 by providing an address where we can communicate with this litigant. If we cannot communicate with Strawn, it will be impossible to litigate this case. Therefore, this failure now compels us to apply the sanction called for under Rule 83.18 and deem the plaintiff to have abandoned this litigation. However, since we have been unable to assess the merits of this complaint, it is recommended that this case be dismissed without prejudice, so that Strawn could reinstitute this case if he ever elects to communicate with the court.
B. Under the Rules of This Court, This Motion Should Be Deemed Unopposed and Granted.
In addition, under the Local Rules of this Court, plaintiffs Strawn, Burris, and Wright should be deemed to concur in this motion to dismiss since these plaintiffs have failed to timely oppose the motion, or otherwise litigate this case. As we have stated before, these procedural defaults completely frustrate and impede efforts to resolve this case in a timely and fair fashion, and under the rules of this court warrant dismissal of this lawsuit since Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on the plaintiffs to respond to motions and provides that:
Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with this rule shall be deemed not to oppose such motion. Nothing in this rule shall be construed to limit the authority of the court to grant any motion before expiration of the prescribed period for filing a brief in opposition. A brief in opposition to a motion for summary judgment and LR 56.1 responsive statement, together with any transcripts, affidavits or other relevant documentation, shall be filed within twenty-one (21) days after service of the movant's brief. Local Rule 7.6 (emphasis added).
It is now well settled that “Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency ‘if a party fails to comply with the [R]ule after a specific direction to comply from the court.'” Williams, No. 09-1704, 2010 WL 3703808, *1 (quoting Stackhouse, 951 F.2d at 30). In this case, the plaintiffs have not complied with the local rules, or this court's orders, by filing a timely response to this motion. Therefore, these procedural defaults by the plaintiffs compel the court to consider:
[A] basic truth: we must remain mindful of the fact that “the Federal Rules are meant to be applied in such a way as to promote justice. See Fed. R. Civ. P. 1. Often that will mean that courts should strive to resolve cases on their merits whenever possible. However, justice also requires that the merits of a particular dispute be placed before the court in a timely fashion . . . .”Lease v. Fishel, 712 F.Supp.2d 359, 371 (M.D. Pa. 2010) (quoting McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir. 1998)).
With this basic truth in mind, we acknowledge a fundamental guiding tenet of our legal system. A failure on our part to enforce compliance with the rules, and impose the sanctions mandated by those rules when the rules are repeatedly breached, “would actually violate the dual mandate which guides this Court and motivates our system of justice: ‘that courts should strive to resolve cases on their merits whenever possible [but that] justice also requires that the merits of a particular dispute be placed before the court in a timely fashion.' ” Id. Therefore, we are obliged to ensure that one party's refusal to comply with the rules does not lead to an unjustified prejudice to those parties who follow the rules.
These basic tenets of fairness apply here. In this case, plaintiffs Strawn, Burris, and Wright have failed to comply with Local Rule 7.6 by filing a timely response to this motion to dismiss. This failure now compels us to apply the sanction called for under Rule 7.6 and deem these plaintiffs to not oppose this motion.
C. Dismissal of Plaintiffs Burris, Strawn and Wright from this Case Is Also Warranted Under Rule 41.
Rule 41(b) of the Federal Rules of Civil Procedure authorizes a court to dismiss a civil action for failure to prosecute, stating that: “If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” Fed.R.Civ.P. 41(b). Decisions regarding dismissal of actions for failure to prosecute rest in the sound discretion of the Court and will not be disturbed absent an abuse of that discretion. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002) (citations omitted). That discretion, however, while broad, is governed by certain factors, commonly referred to as Poulis factors. As the United States Court of Appeals for the Third Circuit has noted:
To determine whether the District Court abused its discretion [in dismissing a case for failure to prosecute], we evaluate its balancing of the following factors: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).Emerson, 296 F.3d at 190.
In exercising this discretion “there is no ‘magic formula' that we apply to determine whether a District Court has abused its discretion in dismissing for failure to prosecute.” Lopez v. Cousins, 435 Fed.Appx. 113, 116 (3d Cir. 2011) (quoting Briscoe v. Klaus, 538 F.3d 252 (3d Cir. 2008)). Therefore, “[i]n balancing the Poulis factors, [courts] do not [employ] a . . . ‘mechanical calculation' to determine whether a District Court abused its discretion in dismissing a plaintiff's case. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992).” Briscoe, 538 F.3d at 263. Consistent with this view, it is well settled that “ ‘no single Poulis factor is dispositive,' Ware, 322 F.3d at 222, [and it is] clear that ‘not all of the Poulis factors need be satisfied in order to dismiss a complaint.' ” Briscoe, 538 F.3d at 263 (quoting Mindek, 964 F.2d at 1373). Moreover, recognizing the broad discretion conferred upon the district court in making judgments weighing these six factors, the court of appeals has frequently sustained such dismissal orders where there has been a pattern of dilatory conduct by a pro se litigant who is not amenable to any lesser sanction. See, e.g., Emerson v. Thiel College, supra; Tillio v. Mendelsohn, 256 Fed.Appx. 509 (3d Cir. 2007); Reshard v. Lankenau Hospital, 256 Fed.Appx. 506 (3d Cir. 2007); Azubuko v. Bell National Organization, 243 Fed.Appx. 728 (3d Cir. 2007).
In this case, a dispassionate assessment of the Poulis factors weighs heavily in favor of dismissing this action with respect to plaintiffs Wright, Strawn and Burris. At the outset, a consideration of the first Poulis factor, the extent of the party's personal responsibility, shows that the delays in this case are entirely attributable to these plaintiffs, who have failed to abide by court orders, and have otherwise neglected to litigate this case.
Similarly, the second Poulis factor-the prejudice to the adversary caused by the failure to abide by court orders-also calls for dismissal of this action. Indeed, this factor-the prejudice suffered by the party seeking sanctions-is entitled to great weight and careful consideration. As the Third Circuit has observed:
“Evidence of prejudice to an adversary would bear substantial weight in support of a dismissal or default judgment.” Adams v. Trustees of N.J. Brewery Employees' Pension Trust Fund, 29 F.3d 863, 873-74 (3d Cir. 1994) (internal quotation marks and citation omitted). Generally, prejudice includes “the irretrievable loss of evidence, the inevitable dimming of witnesses' memories, or the excessive and possibly irremediable burdens or costs imposed on the opposing party.” Id. at 874 (internal quotation marks and citations omitted). . . . However, prejudice is not limited to “irremediable” or “irreparable” harm. Id.; see also Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003); Curtis T. Bedwell & Sons, Inc. v. Int'l Fidelity Ins. Co., 843 F.2d 683, 693-94 (3d Cir. 1988). It also includes “the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy.” Ware, 322 F.3d at 222.Briscoe, 538 F.3d at 259-60.
In this case, the plaintiffs' failure to litigate this claim or comply with court orders now wholly frustrates and delays the resolution of this action. In such instances, the defendants are plainly prejudiced by the plaintiffs' continuing inaction and dismissal of the case clearly rests in the discretion of the trial judge. Tillio, 256 Fed.Appx. 509 (failure to timely serve pleadings compels dismissal); Reshard, 256 Fed.Appx. 506 (failure to comply with discovery compels dismissal); Azubuko, 243 Fed.Appx. 728 (failure to file amended complaint prejudices defense and compels dismissal).
When one considers the third Poulis factor-the history of dilatoriness on the plaintiffs' part-it becomes clear that dismissal of this action is now appropriate. In this regard, it is clear that “ ‘[e]xtensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response . . ., or consistent tardiness in complying with court orders.' Adams, 29 F.3d at 874.” Briscoe, 538 F.3d at 260-61 (some citations omitted). Here, plaintiffs Burris, Strawn, and Wright have failed to timely file pleadings, and have not complied with an order of the court. Furthermore, Strawn has declined to receive communications from the court. Thus, the plaintiffs' conduct displays “[e]xtensive or repeated delay or delinquency [and conduct which] constitutes a history of dilatoriness, such as consistent non-response . . ., or consistent tardiness in complying with court orders.” Adams, 29 F.3d at 874.
The fourth Poulis factor-whether the conduct of the party or the attorney was willful or in bad faith-also cuts against Burris, Wright and Strawn in this case. In this setting we must assess whether this conduct reflects mere inadvertence or willful conduct, in that it involved “strategic, ” “intentional or self-serving behavior, ” and not mere negligence. Adams, 29 F.3d 863, 875 (3d Cir. 1994). At this juncture, when these plaintiffs have failed to comply with instructions of the Court directing them to take specific actions in this case, the Court is compelled to conclude that the plaintiffs' actions are not accidental or inadvertent but instead reflect an intentional disregard for this case and the Court's instructions.
While Poulis also enjoins us to consider a fifth factor, the effectiveness of sanctions other than dismissal, cases construing Poulis agree that in a situation such as this case, where we are confronted by pro se litigants who will not comply with the rules or court orders, lesser sanctions may not be an effective alternative. See, e.g., Briscoe, 538 F.3d at 262-63; Emerson, 296 F.3d at 191. This case presents such a situation where the plaintiffs' status as pro se litigants severely limits the ability of the court to utilize other lesser sanctions to ensure that this litigation progresses in an orderly fashion. In any event, by entering our prior orders, and counseling the plaintiffs on their obligations in this case, we have endeavored to use lesser sanctions, but to no avail. Plaintiffs Burris, Wright, and Strawn still decline to obey court orders, and otherwise ignores their responsibilities as litigants. Since lesser sanctions have been tried, and have failed, only the sanction of dismissal remains available to the Court.
Finally, under Poulis, we are cautioned to consider one other factor, the meritoriousness of the plaintiffs' claims. In our view, however, consideration of this factor cannot save these particular plaintiffs' claims, since they are now wholly non-compliant with their obligations as litigants. Simply put, Strawn, Burris, and Wright cannot refuse to address the merits of their claims, then assert the untested merits of these claims as grounds for denying a motion to sanction them. Furthermore, it is well settled that “ ‘no single Poulis factor is dispositive,' Ware, 322 F.3d at 222, [and it is] clear that ‘not all of the Poulis factors need be satisfied in order to dismiss a complaint.' Mindek, 964 F.2d at 1373.” Briscoe, 538 F.3d at 263. Therefore, the untested merits of the non-compliant plaintiffs' claims, standing alone, cannot prevent imposition of sanctions.
In any event, as discussed below, we agree that the disparate claims of these defendants are improperly combined in a single lawsuit. Therefore, these conflated claims should be dismissed with instructions that individual plaintiffs separately file their discrete individual claims in separate lawsuits.
D. These Four Inmates' Claims Are Not Properly Joined in a Single Lawsuit.
In their motion to dismiss, the defendants sought the dismissal of the conflated claims of the four inmate-plaintiffs arguing that the complaint appears to set forth a hodgepodge of individual claims by the four plaintiffs against different parties based upon discrete and disparate events with the only clear common tie between the claims being the fact that the plaintiffs were all D-Code Stability Health inmates housed on BA Unit at SCI Rockview.
Upon review of this complaint, we agree that the allegations made by the four inmate-plaintiffs often appear to involve distinct acts committed by disparate parties at different times and places. Thus, there is no single, coherent legal, logical, topical, or temporal connection between these various claims. Without some further articulation of a unifying theme or thread between these claims, the joinder of these plainly divergent claims in a single lawsuit is inappropriate under Rule 20 of the Federal Rules of Civil Procedure, the rule governing joinder of defendants in federal litigation, which provides, in part, that:
Person[s] ... may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.
Fed. R.Civ. P., Rule 20(a)(2).
In this case, it cannot be said from the complaint that the allegations made by Pew, Wright, Burris, and Strawn arise out of the same transaction, occurrence or series of transactions or occurrences. Quite the contrary, these episodes appear to be separate transactions, allegedly committed by different actors at divergent times and places. “[G]iven the hodgepodge of claims raised in the ... complaint, ” Boretsky v. Governor of New Jersey, 433 Fed.Appx. 73, 77 (3d Cir.2011), this Court may properly, in the exercise of its discretion, dismiss this complaint, and require each plaintiff to file separate complaints relating to what seem to be factually distinct claims. Id.
In order to add clarity to these claims, we recommend that the Court exercise its discretion by following this course, and dismissing apparently misjoined claims in this complaint without prejudice to Plaintiffs Burris, Strawn, and Wright filing separate complaints relating to what seem to be factually distinct claims. See Johnson v. Holt, No. 1:13-CV-1866, 2015 WL 672127, at *22-23 (M.D. Pa. Feb. 17, 2015); Johnson v. Chambers, No. 1:11 CV 831, 2012 WL 398335, at *16 (M.D. Pa. Jan. 20, 2012) report and recommendation adopted, No. 1:11 CV 831, 2012 WL 398309 (M.D. Pa. Feb.7, 2012) aff'd, 487 Fed.Appx. 693 (3d Cir. 2012). This caution is particularly appropriate with respect to inmate Pew who has twice been informed that he may not combine and conflate unrelated claims and parties into a single lawsuit. See, e.g., Pew v. Boggio, No. 3:15-CV-1042, 2016 WL 3024947, at *9 (M.D. Pa. May 4, 2016), report and recommendation adopted, No. 3:15-CV-1042, 2016 WL 3001136 (M.D. Pa. May 25, 2016); Pew v. Wetzel, No. 1:20-CV-668, 2020 WL 6330042, at *5-6 (M.D. Pa. Sept. 3, 2020), report and recommendation adopted, No. 1:20-CV-00668, 2020 WL 6321604 (M.D. Pa. Oct. 28, 2020). However, given our recommendation that Plaintiffs Strawn, Wright, and Burris be dismissed from this case, this recommendation would effectively limit the current complaint solely to the claims of inmate Pew. Thus, the relief sought by the defendants-severance of this disparate claims-would be granted through the dismissal of three out of the four plaintiffs with instructions that they file separate complaints if they wished to pursue their individual claims.
In sum, all of the Poulis factors favor dismissal of this complaint as to Plaintiffs Burris, Strawn, and Wright. Therefore, this motion to dismiss should be granted.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the defendants' motion to dismiss (Doc. 6), be GRANTED and this complaint be DISMISSED as to plaintiffs Burris, Strawn, and Wright, without prejudice to the filing of separate individual complaints by these inmate-plaintiffs.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.